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“E-Personation” Bill Could Be Used to Punish Online Critics, Undermine First Amendment Protections for Parody

A bill that could undermine a new and important form of online activism has quietly worked its way through the California legislature. If signed by the governor, the new law would make it a crime to impersonate someone online in order to “harm” that person. In other words, it could be illegal to create a Facebook or Twitter account with someone else’s name, and then use that account to embarrass that person (including a corporate person like British Petroleum or the U.S. Chamber of Commerce, or a public official).

Here’s the problem: temporarily "impersonating" corporations and public officials has become an important and powerful form of political activism, especially online. For example, the Yes Men, a group of artists and activists, pioneered “identity correction,” posing as business and government representatives and making statements on their behalf to raise popular awareness of the real effects of those entities’ activities, like the failure to Dow to adequately compensate victims of the Bhopal disaster and the U.S. government’s destruction of public housing units in New Orleans. These sorts of actions regularly receive widespread media coverage, sparking further public debate. Last year, the activists staged a thinly veiled hoax, presenting themselves at a press conference and on a website as the Chamber of Commerce and, in direct opposition to the Chamber’s actual position, promising to stop lobbying against strong climate change legislation. (Not amused, the Chamber promptly sued the Yes Men based on a trumped-up trademark complaint; EFF is defending the activists.)

Others have taken a similar approach, using spoof sites and identity correction to raise awareness about community issues,environmental threats, and, most recently, the historical roots of Haiti’s economic problems. Unfortunately, the targets of the criticism, like the Chamber, have responded with improper legal threats and lawsuits. It would be a shame if Senator Simitian’s bill added another tool to their anti-speech arsenal.

Proponents of the bill insist that there is no free speech problem because the new law would only apply to “credible” impersonations. That argument misses the point – identity correction depends on initial credibility, just as it also depends on prompt exposure.

What is worse, the bill is not needed. Sponsors of the bill say that victims of online harassment and defamation have little legal recourse. That’s simply not true. Laws against fraud and defamation are already on the books, and they apply online as well as offline. Moreover, judges and juries applying those laws have the benefit of an extensive body of jurisprudence aimed at limiting their impact on legitimate free speech.